FAC News - Monday, April 7, 2003 9:23 PM

Day six of the Anwar Ibrahim Appeal Hearing – The prosecution replies without replying

Prosecution sidesteps the issues; replies without replying

The Attorney-General, Abdul Gani Patail, took the floor on the sixth day of the Anwar Ibrahim and Sukma Darmawan Sasmitaat Madja appeal hearing to argue the case for the respondent (prosecution).

Today was the first day for the ‘other side’ to reply to the five days of various allegations made by the appellant (defence) against the conduct of the Trial Judge, AG, Prosecutors, police, and many more.

The spectators’ gallery was packed with curious members of the public and Reformasi supporters who had lined up more than two hours before ‘opening time’ to ensure they got in. The ‘quota’, as it was, was too small – only ten members of the media, twenty family members, and the rest, a handful, for members of the public.

What was foremost in everyone’s mind was how would the prosecution answer to the charges of Mala Fide, conspiracy, trumped-up charges, police torture, blackmail, extortion, fabricated evidence, contradicting testimony, and all that stuff Hollywood movies are made of.

The five days of submission by the defence over the last two weeks was definitely exciting. Certainly the prosecution would add more excitement to what already promises to be Malaysia’s appeal hearing of the century.

But, alas, all the great expectations were soon to be shattered. Most found it terribly difficult just to stay awake. If they had paid to get in, they certainly would have demanded their money back, for the performance they saw today, a kindergarten year-end concert would have been more stimulating.

As the Malay proverb goes, ‘Indah kabar dari rupa’, which roughly translates as ‘the news is juicier than the actual event’.

Yes, that’s what it was; a major letdown, an anticlimax, a no contest. The prosecution just cited past events and judicial decisions of other cases in India and England in a feeble attempt to shoot down all the defence allegations without actually replying to them or denying them.

Clearly, the prosecution was trying to win the judges over on technicalities and hoping that the judges will go along with them on the argument that it needs not reply to or deny the allegations but that the allegations need not be considered at all.

In short, the judges are being told to ignore all the allegations and rule that the entire defence argument is not relevant.

Yes, the very familiar “tak relevan” (not relevant) ruling of the previous trial judge that helped the prosecution out of their tight corner whenever the defence got them pinned down.

The prosecution knew it would not be able to argue itself out of this one. So it is telling the court that everything the defence has raised over the first five days should be ruled not relevant and should not be considered. This way, the defence’s entire case can be flushed down the toilet with one twist of the wrist.

And we will now go through what the prosecution argued today.

Inconsistencies do not make the witness a liar

The Attorney-General’s main argument on the inconsistency of its star witness, Azizan Abu Bakar, the alleged victim of the sodomy act, is that just because Azizan was inconsistent does not mean he is unreliable or that his testimony lacks credibility.

“The main issue in this appeal is the question of Azizan’s credibility,” said the AG. “It is a single most important issue to both the prosecution and the defence in that the prosecution’s case almost entirely rests upon his testimony – thus, credibility.”

“It is contended by the appellants that Azizan is not credible for reasons we would advert to later.”

“The question is what happens when there are discrepancies or contradictions in a witness’ testimony. Would that make him less than credible and lead to an outright rejection of his entire testimony?”

“Discrepancies are bound to happen even by honest and disinterested witnesses and absolute truth is beyond human perception.”

The AG then added, “Forgetfulness and failure to recall exactly certain events, which do not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief.”

“The fact that there are discrepancies in a witness’ testimony does not straight away make him an unreliable witness and make the whole of his testimony unacceptable.”

What the AG was saying here is that it agrees that Azizan was inconsistent. But this, in no way, makes him an unreliable witness. It is something normal and quite acceptable. In fact, it is only human to be inconsistent.

The AG then said that Azizan’s discrepancy in his testimony is not related to a material point. Therefore, his inconsistencies do not harm the case against Anwar and Sukma in any way.

“It is only when a witness’ evidence on material or obvious matters in the case is so irreconcilable, ambivalent, and negational that his whole evidence is to be disregarded.”

As to the ‘non-material’ or ‘minor’ inconsistencies that the prosecution is referring to are:

1. Azizan’s admission that he was NOT sodomised by Anwar Ibrahim, then his subsequent change of stance by saying he was.

2. That Azizan contradicted himself when he told the police he was sodomised in May 1994 after first saying it was May 1992, then later changing his story to between January and March 1993.

3. That Azizan said he could not remember whether he told the police he was sodomised in 1992, then later admitted he DID tell the police he was.

4. That the trial judge himself commented Azizan is an evasive witness who refuses to answer even simple questions.

The prosecution argued that the above contradictions are not that important to the case even though the judge himself commented that Azizan appears far from credible. In fact, the prosecution explained, “Azizan had clarified the so-called contradictions.”

“Should there be any inconsistency or contradiction, it is not material to the extent it goes to the root of the charge or detracts from the main thrust of the prosecution’s evidence.”

“The alleged incident occurred about six years ago. Therefore, consistencies are bound to happen. But that certainly does not mean Azizan was lying. Azizan was a truthful witness.”

The AG summed up by saying that the parts where Azizan was not consistent were not crucial to the case. Azizan may have contradicted himself as to the date and time, but the place still remains the same.

The AG, however, never addressed the fact that Anwar had a solid alibi for the ‘not that important’ time and date, and that he had proven he never was at the place in question. All the AG was concerned about was that Azizan had said it happened in the Tivoli Villa, and he had never wavered in naming this place, so it must be true even if he could not pin down the date and time and the prosecution could not tear Anwar’s alibi to pieces.

And the reason Azizan was not consistent was because he was confused due to the so many questions he had to answer and the fact that he was someone of a low education level. Therefore, understandably, he was not someone who should be expected to be consistent.

Amendments to the charges were Bona Fide

The Attorney-General denied that the amendments to the charges against Anwar Ibrahim and his adopted brother, Sukma Darmawan Sasmitaat Madja, were Mala Fide as alleged by the Defence.

The original charge was that Anwar and Sukma had sodomised Azizan in May 1994. This was the charge drawn up on 29 September 1998.

Azizan then testified during the trial that he was sodomised from early 1992 to May 1992. So, on 27 April 1999, the charge was amended to May 1992.

Then, the defence filed a Notice of Alibi to prove that, in May 1992, the Tivoli Villa, the place of the alleged crime, was not ready yet. So, for the second time, the charge was amended, and this time to ‘one day at 7.45pm between 1 January 1993 and 31 March 1993’.

To this the AG replied that the first ‘mistake’ was a typographical error. The charge should actually have read ‘May 1992’ instead of ‘May 1994’. Then, when the defence filed their Notice of Alibi, and it was discovered that the Tivoli Villa was not completed yet, the Investigation Officer, SAC1 Musa Hassan, ‘re-interrogated’ Azizan and asked him to “remember correctly the date of the incident.”

And that was when Azizan, after ‘correctly remembering’, came out with the ‘correct date’ all on his own, without coerce or coaching from the police. The ‘correct date’ was entirely Azizan’s own initiative, explained the AG, and was not a date suggested by the police.

And that was when the charges against Anwar and Sukma were amended and were in no way fabricated or trumped-up charges.

In fact, argued the AG, since Azizan kept changing his story so many times and was very inconsistent, this proves he was telling the truth. If there was any attempt to fabricate charges against Anwar and Sukma, then there would not be any inconsistencies at all.

In short, because Azizan appears to be lying, then this is every reason to believe he is telling the truth, for a real liar would not change his story so many times. If Azizan’s story had been too perfect and without any flaws, added the AG, then this would be a strong reason to be suspicious.

Anyhow, added the AG, dates are important only in specific cases. In the case of Anwar’s and Sukma’s sodomy trial, dates are not that crucial.

“From time immemorial, dates have never been important in an indictment,” said the AG.

In reply to this, YB Azmin Ali, the National Justice Party State Assemblyman for Hulu Kelang, had this to say to FAC News when interviewed outside the court.

“How can the date not be important? The prosecution’s entire case rests on the allegation that Anwar and Sukma had sodomised Azizan in the Tivoli Villa one day from 1 January 1993 to 31 March 1993. If Anwar has proven he was never there those entire 90 days, then what case do they have?”

“What if they had amended the date to a time before Azizan was born? Could Anwar have sodomised someone who was not even born yet? Would, then, the date not be important anymore? Of course the entire case depends on the date!”

Azizan, because he was a good Muslim, exposed Anwar’s ‘crime’

Azizan said he had exposed Anwar’s sexual misconduct because he (Azizan) was a good Muslim. Subsequently, during the course of the trial, Azizan got arrested and convicted for close proximity, a crime no ‘good Muslim’ would commit.

The Prime Minister, Dr Mahathir Mohamad, in an interview, said the only reason Azizan was arrested was because the opposition was following him in an attempt to catch him doing something wrong.

Yes, that was why Azizan was arrested and sentenced to six months jail - because the opposition was trailing him to catch him with his pants down, not because he had committed a crime.

The defence then requested that Azizan be recalled as a witness so that his credibility as a ‘good Muslim’ can be reassessed. But the trial judge disallowed it.

“Azizan’s moral character has no relevance to the issue,” argued the AG.

“Just because Azizan was convicted for close proximity in a Syariah Court does not mean he is not of credible character. There is no reason to reject his evidence.”

“Azizan’s immoral character has no significance to the fact in issues in the charges against both the accused. The conviction in the Syariah Court does not affect his credibility.”

The IO read medical books to come to his decision

On the point raised by the defence that they had asked for Azizan to be sent for a medical examination to determine whether he had indeed been sodomised, but that the prosecution had refused to do so, the AG had this to reply:

“The Investigation Officer, SAC1 Musa Hassan, had applied his past experience and relied on medical books when he decided not to send Azizan for a medical examination.”

“The trial judge considered this issue in relation to the issue of penetration and he held that medical examination was not the only method to prove penetration.”

So the policeman read a medical journal and played doctor while the judge ruled that the testimony of an inconsistent witness was better than a doctor’s expert testimony.